As the minister tasked with implementing the heart of the Ontario Mining Act takes over his new portfolio, the challenges facing that goal seem to be growing by the week.

The new minority Liberal government named Sudbury’s Rick Bartolucci minister of Northern Development and Mines, Oct. 20. Bartolucci replaces Thunder Bay-Superior North’s Michael Gravelle, the minister who brought in the new Mining Act.

The Sudbury MPP’s task of bringing in phases two and three of the Mining Act looks more daunting than ever after a month that has seen a new flare up over mining exploration on Kitchenuhmaykoosib Inninuwug (KI) traditional lands, a Supreme Court decision granting Grassy Narrows First Nations the right to reject mining exploration on its territory and Nishnawbe Aski Nation Grand Chief Stan Beardy’s stance on any outside incursion onto northern Ontario First Nation land.

He wants the Crown’s recognition that the First Nation peoples of his region have the sole right to decide who uses the land.

“We never gave up the right to govern ourselves,” Beardy said. “As a sovereign state we still maintain that right. We may agree to share the land from time to time, but the provincial government does not have the right to let third parties onto the land.”

Intent of the act

Even Beardy acknowledged that some form of guidelines over mining in the Far North was necessary. The previous Ontario Mining Act, in place since the 1870s, basically gave mining and exploration companies free entry to the land without any consultation with local people.
The grand chief says under the new Mining Act nothing has changed and there still remains a perception by industry that all land outside of reservations is free game for mining.

But representatives from environmental groups EcoJustice and Mining Watch Canada, while agreeing that Aboriginal people still do not have appropriate input, say the new Mining Act is a good start towards what could be a fair and equitable system.

Justin Duncan of EcoJustice co-wrote a report before Ontario’s Mining Act was created calling on the government to ensure that land owners and Aboriginal groups gave consent to mining companies before exploration and production occurred.

Duncan said that the Mining Act does set parameters to address those questions. But he cautioned that until regulations set out what mining companies are expected to do, it is impossible to tell if the act has gone far enough.

“There are all these pieces still up in the air,” Duncan said. “I don’t think anybody knows what it is going to look like. And unfortunately the current act does not impact on the ground yet – so it is basically the same system with the same uncertainty as existed before.”
Duncan added that for the Mining Act to be successful a permitting system and framework for consultations between industry and First Nations need to be in place.

The Mining Act, explained

The Ontario Mining Act passed through legislature in October 2009. Gravelle, the minister who introduced the act and steered it through its initial consultation periods, has repeatedly called the act a balance between the mining industry – a major player in the Ontario economy with roughly $10 billion in production, including over $800 million in exploration – and giving First Nation communities the ability to make decisions on their own land.

“We want to find that balance that would be appropriate … to properly respect the needs of First Nations communities to make their own decisions,” Gravelle told the Northern Miner earlier this year.

Phase one of the act has already come into play. It focuses on land owner issues in southern Ontario and modernizing existing permitting applications, but does include the claim that “engaging Aboriginal communities early and throughout the exploration process is essential.”
Yet as Ramsay Hart of Mining Watch Canada explained, there is no stipulation that the engagement between industry and First Nations has to amount to anything.

For example Hart pointed to the KI dispute with God’s Lake Resources in late September, where God’s Lake sent letters to KI Chief Donny Morris and without any reply assumed it had fulfilled its obligation to consult.

Phase two of the act, expected to be implemented over the next two years, is where it gets interesting for First Nation communities.

This phase includes a clause where First Nation communities can withdraw land from development by showing it is a site of cultural or spiritual significance, although criteria for showing either has not yet been outlined. It also sets up a dispute resolution committee to assist when consultation between industry and First Nations fails, and outlines a process where the government examines all mining exploration plans to determine whether consultation with Aboriginal groups is necessary.